Why a Strike on Syria without Congressional Authorization is Illegal

At this point, it is unclear whether military action against Syria will be necessary in order to resolve the standoff over the Assad regime’s reported use of chemical weapons, given the alternative proposal suggested by Secretary of State John Kerry. What has become abundantly clear, however, is the lack of support the Obama Administration has for its proposed action, which was prompted by the chemical weapons attack last month that killed more than one thousand civilians.

It’s important, however, not to ignore the question of the legality of the proposed strikes under American law. The Administration argues that the proposed military strikes will not be a full-fledged war, and unlike the U.S.’s role in Iraq and Afghanistan, it will be limited in “duration and scope.” Therefore, they say, it comes within the authority of the Executive Branch and the powers given to the President under the Constitution as Commander-in-Chief. Leading up to the President’s surprising decision to consult Congress on this issue, several Members of Congress circulated letters to colleagues asserting that while the President determines how to use our Armed Forces, the formal commission of an act of war – irrespective of the duration or scope of a military action – would need to be authorized by Congress. And I absolutely agree.

It may be true that Obama has in fact broken from precedent by going to Congress, but he has said he believes seeking congressional authorization for the use of force in Syria was a matter of policy and that he believes that he is authorized to launch a military strike on Syria without congressional approval. But it’s interesting to note how President Obama’s understanding of presidential authority on war powers and unilateral authority to militarily intervene in Syria departs significantly from what Senator Obama emphatically stated as a presidential candidate in 2007. During an interview with the Boston Globe, when reporter Charlie Savage asked Obama under what circumstances the President would have constitutional authority to bomb Iran without first seeking authorization from Congress, Obama replied: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation [emphasis mine].” As you recall, the context of the question about Iran was, like the proposed intervention in Syria – not a “full-fledged war,” but proposals that would target suspected nuclear sites in Iran. As I stated previously, I don’t believe the President’s authority under the Constitution is any different with respect to the scope of military action – and apparently, in 2007 then-Senator Obama agreed with me.

Article I, Section 8, Clause 11 of the Constitution grants to Congress “the power to declare war [and] grant letters of marque and reprisal.” When President Clinton, acting without congressional authorization, sent U.S. forces to Kosovo in 1999 in a humanitarian intervention led by the North Atlantic Treaty Organization (NATO), the American Civil Liberties Union (ACLU) sent a letter to Senate Majority Leader Trent Lott (R-Miss), arguing that “the possible commitment of U.S. ground troops requires prior congressional authorization under the U.S. Constitution and the War Powers Resolution. In fact, such authorization is also required for any air and missile strikes by U.S. forces in connection with any air war in Yugoslavia.” It is true that commentators cite the 1973 War Powers Resolution (WPR) as justification for the Executive Branch’s authority to conduct limited strikes, arguing that the WPR gives presidents authority to use military force for up to ninety days without congressional authorization. But the interpretation of the Resolution that many constitutionalists agree with is clearly articulated in Section 1547(d)(2), which provides that the Resolution should not “be construed as granting any authority to the President with respect to the introduction of the United States Armed Forces into hostilities … which authority he would not have had in the absence of this joint resolution.” The Founding Fathers were particularly wary of giving the Executive Branch war powers. Alexander Hamilton, the Founding Father who had a very expansive view of presidential authority, considered congressional authorization to be necessary for the use of force. "I am not ready to say that [the President] has any other power than merely ... to repel force by force," Hamilton wrote in 1798, and to go further "requires the sanction of that Department [i.e., Congress] which is to declare or make war." The War Powers Resolution argues that the Constiution grants authority to the President to launch a military attack against another nation only under three conditions: “a declaration of war, specific statutory authorization, or a national emergency created by attack upon the United States, its territories or possessions, or its Armed Forces.”

Yesterday, Rep. Scott Garrett (R-NJ), founder and Chairman of the Congressional Constitution Caucus, introduced legislation to repeal the WPR. “The use of military force against a sovereign nation is an act of war. Article I, Section 8 of the Constitution explicitly grants Congress the sole power to declare war. Unfortunately, since its passage in 1973, the War Powers Resolution has been stripped of its original purpose and has instead served as a temporary, de facto authorization for the executive branch to use military force whenever it deems it necessary,” Congressman Garrett wrote in a press release yesterday. However, since Garrett's legislation only repeals the WPR, and doesn't suggest any system or framework to replace it, it doesn't really advance this very important question.

If the interpretation I've argued for is correct - that the President only can use force when authorized by Congress, or to respond to an imminent threat to the United States - it’s therefore important to discuss the intent of the proposed strikes on Syria. In a July letter addressed to House Foreign Affairs Member Eliot Engel (D-NY), General Martin Dempsey, Chairman of the Joint Chiefs of Staff, reiterated the Administration’s position that our policy is not to tip the “balance of the conflict” but rather to “impose a cost on [Syria] for unacceptable behavior.” Specifically, Dempsey wrote, the aim is not to “destroy the Syrian Air Force. The loss of Assad’s Air Force would negate his ability to attack opposition forces from the air, but it would also escalate and potentially further commit the United states to the conflict.” To support an argument for a unilateral attack on Syria, the Obama Administration has claimed that the chemical weapons attack represents a direct threat to U.S. national security. They could also argue that the possibility of chemical weapons falling into the hands of terrorist groups that could do harm to our people or interests justifies a unilateral attack.

Commentators point to our interventions in Libya and Kosovo as case studies, but I believe both those instances were in fact unconstitutional. I would argue the 2011 Libya intervention with NATO was in violation of the Constitution irrespective of the U.S. joining an international coalition (NATO and the Arab League) and operating under a U.N. mandate - even though Obama relied heavily on a U.N. Security Council Resolution as a justification for intervention. Libya was also a clear violation of the WPR since the military operation lasted longer than 90 days. The Administration argued that the intervention did not violate the WPR as U.S. Armed Forces were not introduced into "hostilities." The Office of Legal Counsel (OLC) opinions regarding the use of military force in Libya used the 1999 NATO intervention in Kosovo as a "precedent," but Kosovo wasn't much of a precedent as it lacked a U.N mandate and was therefore illegal under international law and wasn't authorized by Congress.

The argument that we are acting in self-defense, especially in light of President Obama's concession last night that the situation does not pose a "direct or imminent threat to our security," is patently implausible. Yet it is not unlike what we’ve seen from previous national security legal arguments made bythis President.

The President may enjoy his power as Commander-in-Chief, and that has caused him to lose sight of the constitutional system he once respected. But the old Obama was right: the U.S. Constitution does not grant authority to the President to launch a military attack against another nation absent “a declaration of war, specific statutory authorization, or a national emergency created by attack upon the United States, its territories or possessions, or its Armed Forces.”